Texas Bar Journal - November 2014

The Digital Age

David Slayton & Megan Lavoie 2014-10-28 00:37:15

Eight things to know about e-filing in Texas.
It’s been nearly a year since e-filing became mandatory for civil cases in Texas’s 10 most populous counties and for all case types in the state’s appellate courts. During this time, efiletexas.gov and users of the new system have experienced many milestones.
There are now 109 counties and 290 courts e-filing on efiletexas.gov and more than 82,000 registered users. In the first six months of mandatory e-filing, more than 2 million filings came in, with an average of 18,000 filings per weekday. By January 2015, 93 percent of the Texas population will be covered by e-filing counties, and approximately 90 percent of all civil and family law filings in the Texas court system will be done electronically.
There are still counties whose mandate is approaching and more attorneys and legal professionals to sign up. To make the transition smoother and to assist with troubleshooting, here are eight things to keep in mind about e-filing:
1. It takes less than five minutes to register.
If you haven’t registered, go to efiletexas.gov to get started. You will be directed to choose an electronic filing service provider. In the simplest terms, an EFSP is like an electronic courier that virtually delivers your filing to the court. To start e-filing, attorneys must choose an EFSP. The service providers listed on efiletexas.gov have met the certification requirements outlined by the Texas Office of Court Administration, meaning that they will work with the statewide system. Each EFSP offers varying services, and the site has a comparison chart to help users choose a provider. From the fee structure and hours of support to the back-end firm billing integration and other value-added services, there are plenty of options. After you have selected an EFSP, all you need is Internet access, your EFSP login, case information, and digital versions of the documents to be filed.
2. Bookmarks and links in PDFs prove helpful.
Having access to tools such as a word processor, Adobe Acrobat Standard or Adobe Acrobat Pro, and a scanner can help with the transition to e-filing. You must convert all documents into a text-searchable PDF to e-file. Judges and attorneys rely on filings being easy to navigate. If you are submitting a brief, consider hyperlinking citations in all documents and using bookmarks for different sections, which can be helpful to judges reviewing those filings.
To further simplify this process, read the Texas Supreme Court’s Guide to Creating Electronic Appellate Briefs, available on the court’s website, www.search.txcourts.gov/ebriefs.aspx. The guide isn’t just for appellate attorneys; it has many useful tips for lawyers practicing in the trial courts as well.
3. Standardized codes create a unified system for filers.
Familiarize yourself with the Judicial Committee on Information Technology’s Technology Standards (available at http://www.txcourts.gov/rules-forms/rules-standards.aspx), which were updated and approved in October 2014, to unify codes from the filer’s perspective in all trial courts across the state. The codes are for civil, family, juvenile, probate, and multi-district litigation cases.
Previously, each county had various ways of categorizing different cases and documents, and some counties had broad codes while others had more specific ones. This meant that some counties had 500 choices for naming documents while others had only 25 choices, creating confusion and frustration for filers. The Texas Supreme Court encouraged JCIT to work with clerks to standardize codes across the state so that filers could have a uniform experience no matter where they were filing. Having 115 standardized case types for all 254 counties now allows users to have a seamless e-filing experience from one jurisdiction to the next. Almost all e-filing counties are using the standardized codes at this time.
4. Filings may be returned for correction without affecting your deadline.
Clerks cannot refuse to file a document for non-conformance with the rules, but they can return the document for correction under Texas Rules of Civil Procedure 21(f)(11) and 21c(e). So, even if your document is returned for correction, it is considered filed when originally transmitted to the EFSP. The e-filing system provides a history of all transactions, so there is no need to worry that you will miss your deadline if your document is returned for correction. Simply fix the errors and send it back to the clerk by the deadline stipulated by the clerk. A clerk can ask for corrections under the following eight circumstances approved by the Texas Supreme Court and outlined in the JCIT Technology Standards:
1. Insufficient fees
2. Insufficient funds
3. Document addressed to the wrong clerk
4. Incorrect or incomplete information
5. Incorrect formatting
6. PDF documents combined
7. Illegible or unreadable
8. Document contains sensitive data
A filing can be rejected only if the documents were ordered to be sealed or if they were presented to the court on camera.1 Further, clerks are required to reject filings from persons found to be vexatious litigants who have not presented an order from the local administrative judge permitting the filing.
5. You must e-serve opposing counsel if they are registered to e-file.
A time-saving feature of the new e-filing system is the ability to e-serve opposing counsel. Parties must e-serve counsel who have registered in the e-filing system and made available their email addresses under Texas Rule of Civil Procedure 21a(a)(1). Currently, attorneys are not required to register for e-filing, and efiletexas.gov does not automatically pull email addresses from the State Bar records. As a result, the new e-filing system does not contain the contact information of all Texas attorneys—only those attorneys who have registered with the system. This has led to instances of frustration where an e-filing party could not e-serve opposing counsel. A good practice is to call opposing counsel before filing to ask them if they have registered with the system and if they haven’t, encourage them to register. Remember as well that the new Texas Rule of Civil Procedure 21a(1)-(2) allows for email, commercial mail, or fax service without the need to resort to a Rule 11 agreement if e-service through an individual service provider is not possible. In addition, the e-serving feature allows attorneys to track whether opposing counsel have received the e-service and if they have opened the document.
6. Sensitive data must be protected.
Sensitive information must be redacted from documents before e-filing or filing in paper under Texas Rule of Civil Procedure 21c(a-f). Data that must be redacted unless the inclusion of the data is specifically required by a statute, court rule, or administrative regulation include:
• Driver’s license number
• Social Security number
• Passport number
• Tax ID number
• Government-issued ID number
• Bank account number
• Credit card number
• Financial account number
• Birth date
• Home address
• Name of any person who was a minor when the suit was filed
Attorneys are responsible for replacing the sensitive information with an “X” in place of each omitted digit or character or by removing the information in a manner indicating that the data has been redacted. Attorneys must also retain an unredacted version of the document while the case is pending and any related appellate proceedings filed within six months of the date the judgment was signed. If documents are filed containing sensitive data, the clerk may return the document for correction so that the sensitive information can be redacted.
7. E-serving discovery is an option.
In addition to e-serving counsel, the EFSPs, including the state-provided option, allow for attorneys to exchange discovery and other unfiled documents through the e-filing system. This feature also allows attorneys to easily track what discovery has been received and when it was reviewed. To do this, select “Service Only” (and unselect “e-Filing”) through your EFSP. The provider makes sure it gets delivered to the other attorney and allows you to verify that the document was received and opened. Remember, this happens through the e-filing software but does not pass through the court.
8. Criminal e-filing is on its way.
Attorneys and judges who are enjoying the benefits of e-filing have asked when criminal trial courts will venture into the electronic world. Fifteen counties have expressed to the JCIT interest in being included in a pilot program for criminal e-filing. By statute, as a result of HB 349 during the 83rd Legislative Session, Hidalgo County must implement criminal e-filing by Sept. 1, 2015. Note that efiletexas.gov is configured to handle criminal e-filing, and the OCA expects at least three counties to begin the pilot by the end of 2014.
NOTES
1. Texas Rules of Civil Procedure 21(f)(4)(B) prohibit these documents from being e-filed.
DAVID SLAYTON
is the administrative director of the Office of Court Administration and the executive director of the Texas Judicial Council. He is a graduate of Texas Tech University (B.A.) and Troy University (M.P.A.), a fellow of the Institute for Court Management, and the immediate past president of the board of the National Association for Court Management.
MEGAN LAVOIE
is the director of public affairs and special counsel for the Office of Court Administration. She previously served as general counsel and communications director for State Sen. Robert Duncan. LaVoie is a graduate of Texas Tech University and St. Mary’s University School of Law.
TROUBLESHOOTING E-FILING ISSUES
Case not found: When e-filing existing cases, providers will sometimes indicate “case not found” or something similar. Solution: Be sure to enter the case number exactly as is—including dashes and leading zeroes. If the case still can’t be found, most providers have an option to bypass the search and e-file anyway.
Missing filing types: Some users click on “New Case” when they intend to e-file within an existing case. The items you e-file to start a case (like an NOA and docket sheet) are different than what you’d e-file later on in the case (exhibits, briefs, etc.). Solution: If your preferred filing type isn’t shown, ensure you are filing the correct document at the correct stage of the proceeding. If there isn’t a fee to file your document, choose “No Fee Document.”
EFSPs providing incorrect information: Some service providers ask e-filers to call a given court for help with e-filing. Solution: The court can only answer questions regarding filings returned for correction. Court staff members are not trained on each service provider’s software, and as a result, they are generally unable to answer questions on the mechanics of e-filing. If you have issues with the system, you should contact your EFSP’s customer service number available at efiletexas.gov/service-providers.htm. The Texas Office of Court Administration is working with service providers to assist e-filers throughout the process. If you have technical difficulties, contact your EFSP. If your issue is not resolved, please email the OCA at efilingissues@txcourts.gov.
HOW EFILETEXAS.GOV WORKS
Efiletexas.gov is a system that receives electronic documents (as PDFs) from attorneys and other filers via Web portals and securely distributes these documents to the appropriate county or appellate court where they can be accepted into the court’s case management system.
There are three basic components to this system:
• EFSPs – Electronic filing service providers are vendors that provide Web portals for filers to submit documents to the efiletexas.gov system. Filers register with one or more of these EFSPs to submit documents. EFSPs offer additional services for a fee. The state also offers a no-cost EFSP service for submitting documents at efile.txcourts.gov. There are currently 12 EFSPs in operation.
• EFM– An e-filing manager is a system that accepts filings from the EFSPs and distributes them to the various county and appellate courts. Court clerks must log in to the EFM to review and accept filings. Courts can also connect and integrate their case management systems to the efiletexas.gov EFM and receive filings directly to their systems.
• CMS – Case management systems are the programs courts use to manage all the cases in their jurisdictions, including information about the parties involved, hearings, filings, evidence, etc. These systems are created and maintained by a variety of vendors or by the county and can connect with efiletexas.gov to share information.